Legalizing queerness

How liberal will our sex laws be in 50 years?

By Brenda CossmanMar 14, 2007, 8:00 PM EDT

Where will laws that affect queer folks be in 50 years? Well, barring the rise of a religious theocracy that takes us back to death by stoning, I’d say a few things are predictable, and a few things are a little less so.

First the predictable: the progress of equality rights will almost certainly finish its work. Virtually all of the explicit discrimination against gay and lesbian folks is already gone. But discriminatory laws dealing with trans folk remain. And neither Charter nor human rights law has yet firmly established that this is not okay.

Of course, these laws have an expiry date. Explicit discrimination against anyone, but particularly against a historically disadvantaged group, just cannot last. Trans folks will be protected from the most obvious forms of discrimination, like getting fired from a job or not getting hired in the first place.

The rest is a little bit harder to predict.

Will trans folks be entitled to have their medical treatments and sex reassignment surgeries paid for? There is certainly a very strong argument that failing to pay for these services, as is commonly the case now, is discriminatory. (Sadly, we need to ask a bigger question: will any medical services actually be paid for by the government in 50 years?)

Then there are the sex laws.

I’ll go out on a limb and say that someone will have finally had the political courage to get rid of Canada’s anal sex laws. Right now, they’re still on the books prohibiting anal sex for anyone under 18 and in any encounter exceeding a twosome, even though pretty much everyone thinks it’s a ridiculous law.

Well, okay, not everyone, but anyone who thinks about discrimination. Section 159 marks one of the last vestiges of laws specifically targeting and criminalizing gay sex. It may not be explicitly discriminatory (it doesn’t specifically say “gay anal sex” is illegal), but the impact is just as obvious.

That’s because the remaining laws-prohibiting such things as indecency and prostitution, and regulating the age of consent-are used every bit as much, if not more, against straight folks as queer folks, primarily because there are simply more straight folks around to be charged. So, there really isn’t a discrimination angle here, at least not in attacking the legitimacy of the laws themselves.

The question, then, is whether Canadians — or Canadian politicians — can get over their obsessive need to regulate consensual sex?

Not when it comes to youth. The age of consent laws aren’t going anywhere (but up). Our society seems intent on denying children, defined to include increasingly older teenagers, their healthy sexuality.

As for regulating adult consensual sex, paid or otherwise, it’s impossible to say whether any government will ever have the political guts to say these laws are ridiculous.

Canada’s prostitution laws have been studied to death, yet no one will move to fully decriminalize them. I’d like to imagine that we will someday get over it, but I’m not very confident.

Same goes for our indecency laws, which basically say you can’t have sex or do sexual things in public. I doubt that it will ever be legal to have sex at a busy downtown intersection. But with the recent swingers decision (where the Supreme Court ruled that sex in a private swingers club is okay), we might well expect to see more places where sex is okay.

Fifty years just isn’t a long time to get over an obsession with sex that goes back thousands of years.